Sunday, January 29, 2006

- Different Names But Similar Elements AND Can Be Used Against Anyone By Our Government -

Introduction

Preventive Detention by administrative power, as opposed to judicial detention, is defined as detention without judicial intervention or sanction. This form of detention, inter alia, may be due to detention by the police (executive) for purposes of investigation[1] and also for the purposes of preventing some supposed ‘crime’ which has not yet occurred (preventive detention). Preventive detention is what we know as Detention Without Trial (‘DWT’).

In this report, we will not be considering Administrative Detention by the police for purposes of investigations prior to being charged but will only be dealing with Preventive Administrative Detention (Detention Without Trial (‘DWT’)).

When we talk about detention, we will not limit ourselves to the narrow interpretation which would only consider incarceration of persons in prisons, lockups and/or detention centres. We will be looking at the word ‘detention’ from a broader perspective and this would include the imposition of any forms of restrictions and conditions on a person’s liberty by the executive without judicial intervention. This will include the imposition of restrictions and/or conditions on an individual’s freedom of movement, association, speech and expression. This will also include the restriction of a person to a town, district and/or specific area or place.

When we talk about detention without trial, we should be talking about the meting out of punishment by the executive, not the judiciary, irrespective if the said ‘punishment’ takes the form of detention in detention centres or the imposition of restrictions and/or conditions that restrict a person’s movement and freedoms.

An individual ‘punished’ without the benefit of a fair and open trial. Many a time, these ‘punishments’ (hereinafter referred to as Detention Without Trial or ‘DWT’) are imposed and/or withdrawn at the discretion of one person, being the Minister (that is the Home Minister).

Laws that allow for DWT (or preventive detentions) have been amended so as to oust the jurisdiction of the courts to review this exercise of the Minister’s discretion. Only procedural aspects of the imposition of these detentions can be reviewed by the courts. The rationale for the ousting of judicial review could be drawn from the words of the Prime Minister when tabling the Internal Security (Amendment Act):

‘The interventionist role of judicial decisions and the trends of foreign courts should not be copied because such actions was against the concept of separation of powers between the executive and the judiciary which was upheld in Malaysia. If the courts can reverse executive’s decision, it would make it impossible for the executive to make any decision for fear that the courts would intervene. The ruling party would then be waiting for the decisions of the courts and the results of appeal to higher courts’[2].

Administrative detention in Malaysia

In Malaysia, generally under the Criminal Procedure Code administrative detention is allowed only for a period not exceeding 24 hours after a person has been arrested.

In Part II of the Federal Constitution which carries the heading ‘Fundamental Liberties’, in particular Article 5(4), it is enshrined most clearly that ‘where a person is arrested and not released he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a Magistrate and shall not be further detained in custody without the magistrate’s authority.

However the provisos of Article 5(4), create two exceptions, being :

to the arrests or detention under the existing law relating to restricted residence[3],

to arrests of ‘... a person, other than a citizen, who is arrested or detained under the law relating to immigration ...’[4]

Article 5(5) creates a further exception being enemy aliens.

Part IX, the heading of which is‘Special Powers Against Subversion, Organised Violence, And Acts And Crimes Prejudicial To The Public And Emergency Powers’ , in particular Art 149 and 150 provides for the enactment of laws that allow for preventive detentions.

Pursuant to Article 149, two acts have been enacted that allow for preventive detentions, namely:

Internal Security Act 1960; and

Dangerous Drugs (Special Preventive Measures) Act 1985.

Pursuant to Article 150, the Emergency (Public Order and Prevention of Crime) Ordinance 1969 which allows for preventive ‘administrative’ detention has been enacted.

Detention without trial (‘DWT’)

There exist four types of laws in Malaysia that allow for DWT and they are:

With regard to the first three, as long as the police or the minister are satisfied that reasons for the detention or the imposition of a restriction order as provided by the respective Acts exist, he can make one of the two (or three) orders available, that is:

Detention Orders;

Restriction Orders;

Suspended Detention Orders.

The length of these orders can be up to two years, but all these Acts also empower the minister to renew these two-year orders for an unlimited period.

The police have the power to arrest and detain a person under these Acts for a period which shall not exceed 60 days, provided that there is at the very least exist ‘reason to believe’ that there are grounds which would justify his detention (ie that the Minister would be satisfied to make a Detention Order or Restriction Order).

Upon arrest, the person detained has no right to an open trial. He has however the right that his detention order be reviewed by an Advisory Board at least once every six months. The findings and the recommendations of this Board will be submitted to the Minister. The Minister will have the final say. There appears to be no such review by any Advisory Board when it comes to Restriction Orders.

There is however the right to seek a writ of habeas corpus pursuant to arrest and detention. In 1989, the laws that allow for DWT were amended, and judicial review of Ministerial Acts has been removed, save for non compliance with any procedural requirement in these Acts governing such act or decision.

As long as the Minister is satisfied …

Any person may fall prey to DWT as long as the Minister is satisfied. The ISA, E(POPC)O and the DD(SPM)A provides that the Minister should be satisfied for specific different reasons why a person should be subjected to DWT, but since the courts have no power to review the basis for the Minister’s satisfaction which brought about the imposition of a detention or restriction order, there is always the possibility of abuse of this power.

History has shown that these unfettered powers have been utilised in the past to suppress dissidents and opponents of the ruling elite, party and/or coalition. In 1987, some 106 opposition party members, NGO[5] activists, trade unionists, church workers and academicians were arrested under the Operation Lalang under the ISA.

With regard to the E(POPC)O, in 1995 two worker leaders were arrested and subjected to restriction orders under this Act on baseless allegations that they were members of a gang. Recently in 2002, this Ordinance was also used by the police to re-arrest 10 persons who were found not guilty and acquitted by the High Court sitting in Ipoh[6].

Therefore as long as the Minister is satisfied, a person may fall victim to the laws that provide for DWT. Was the decision making process bona fide or not? Was there any justification at all to subject a person to DWT? These questions have no answer, because as of 1988, amendments were introduced to all the abovementioned Acts to the shut the door on judicial review of the exercise of this Ministerial discretion[7].

What the Minister needs to be satisfied with is illustrated below. Note that there is no mention of any requirement of evidence to be presented to the Minister, there is also no listing of matters that the Minister must consider before becoming ‘satisfied’. The discretion of the Minister could therefore be exercised arbitrarily.

‘If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years’. (s 8(1) Internal Security Act 1960)

‘If the Minister is satisfied that with a view to preventing any person from acting in any manner prejudicial to public order it is necessary that that person should be detained, or that it is necessary for the suppression of violence or the prevention of crimes involving violence that that person should be detained, the Minister shall make an order (hereinafter referred to as a ‘detention order’) directing that that person be detained for a period not exceeding two years’. (s 4(1) Emergency (Public Order And Prevention of Crime) Ordinance 1969)

‘Whenever the Minister ... is satisfied with respect to any person that such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs, the Minister may, if he is satisfied that it is necessary in the interest of public order that such person be detained, by order (hereinafter referred to as a ‘detention order’) direct that such person be detained for a period not exceeding two years’. (s 6(1) Dangerous Drugs (Special Preventive Measures) Act 1985)

The provisions of the Restricted Residence Act 1933 are drafted in very wide terms. All that seems to be required is that there ‘are reasonable grounds for believing that any person should be required to reside in any particular area ...’. There is no mention about the reasons why such an order, take as for example the DD(SPM)A whereby it is stated that ‘such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs ...’. Hence, the power accorded to the Minister under this Act is disturbingly excessive.

‘Whenever it shall appear to the Minister on such written information and after such enquiry as he may deem necessary that there are reasonable grounds for believing that any person should be required to reside in any particular area or be prohibited from entering into any particular area or areas the Minister may issue an order ...’ (s 2(1) Restricted Residence Act 1933)

Arrest and detention by the Police

With regards to arrest and detention, and the laws that provide for DWT, the police (and in the case of the ISA and the E(PCPO)O, any member of the security forces) may arrest without warrant. The arrest may be done if the said arresting officer has reasons to believe that there are grounds which would justify an issuance of a detention order/restriction order. An example of the provision that provides for arrest is as follows:

‘Any police officer may without a warrant arrest and detain pending inquiry any persons in respect of whom he has reason to believe (i) that there are grounds which would justify his detention under section 8, AND (ii) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia ... or to the maintenance of essential services ...’. (s 73(1) Internal Security Act)

Administrative detention by the Police

Thereafter the police may detain the said person for a period not exceeding 60 days, but there are requirements for the authority of different ranks of police officer for the varying periods of detention. The relevant provisions of the Internal Security Act 1960[8] are set out below:

‘Any person arrested under this section may be detained for a period not exceeding 60 days without an order of detention having made in respect of him under section 8:

Provided that –

(a) he shall not be detained for more that 24 hours except with authority of a police officer of or above the rank of a Inspector;

(b) he shall not be detained for more than 48 hours except with the authority of a police officer of or above the rank of Assistant Superintendent; and

(c) he shall not be detained for more that 30 days[9] unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector General or to a police officer designated by the Inspector General in that behalf, who shall forthwith report the same to the Minister’. (s 73(3) Internal Security Act 1960)

During the period of the 60-day detention

During the 60-day period, the detainee does not have the right of access to his family, friends and even to his legal counsel. The police, even on inquiry by the family members, sometimes do not even confirm that the said person is in detention. The location of the detention is also not revealed to the family, friends and even legal counsel.

From the experiences of ex-detainees of DWT laws, it is said that during this period of detention, the detainee is subjected to interrogations and even torture, mentally and/or physically. Detainees have been subjected to solitary confinement, beatings with pieces of wood, stripping[10], etc. Below are extracts taken from sworn testimonies by four detainees who described their treatment in detention in the course of their application for a writ of habeas corpus. These extracts[11] should provide an idea of what happens to some during detentions.

‘During the first two weeks of my detention, I was interrogated very vigorously by Special Branch officers about my personal faith and my religious activities. I was not allowed sleep for days at a stretch and was warned that I would not get my food if I did not cooperate. One Inspector threatened to disturb my girlfriend ... On one occasion, I was knocked down to the ground and I injured my back. Since then, I have been passing blood in my urine and have suffered pain in my lower back constantly ... On one occasion, Inspector (name withheld) forced me to strip naked and enact the crucifixion of Jesus Christ. [He] also forced me to crawl on the floor in a naked state ...’.

‘The cell was windowless, the only ventilation being some holes in the upper portion of a wall. It was lit by a single light which was kept on all night ... For a full month ... my entire bedding was a thin plywood sheet on a cement slab. I was beaten with a stick about 1cm x 4cm x 120cm on my legs and the soles of my feet several times ... and was also slapped on the face with the back of my hand …’.

‘A police officer put fear in me ... by saying, ‘If I squeeze your balls, how long can you last?’ ... I was also subjected to the cold treatment during interrogations with very cold air directed through louvres onto my head causing me to shiver ... [i] experienced hallucinations and woke up in cold sweat. For two or three nights, I hallucinated that a big cobra was crawling beside me ... It was under such harsh and oppressive circumstances that I was requested to make statements ...’.

‘I was forced to stand on a leg with arms outstretched and head bent backwards for long periods until I collapsed onto the floor ... Immediately I was kicked by the police officer to stand up again on one leg, and this was repeated many times ... I was forced to walk blindfolded towards the wall resulting in knocking myself against the wall and this was repeated many times. The police officers stamped on my toes and fingers causing excruciating and prolonged pains. I was subjected to the ‘cold treatment’ which consisted standing in front of a very cold air conditioner either naked or half naked several times ... and on one occasion the police officer had thrown cold water all over me ... I was forced to strip naked. A police officer ... rolled a bundle of newspapers, lit one end and threatened to burn my genitals [by] bringing the lighted end close to my genitals ... A police officer stated that he would ... make sexual advances to my wife ...’.

The detainee is also many a time alleged to have committed outrageous acts but since there will be no trial, these remain bare allegations. The detainee has no right to an open trial, let alone any trial at all. The police and/or the prosecution therefore do not need to produce any evidence, let alone prove the allegations to the usual standards of proof.

In the case of Dr Syed Husin Ali[12] who was detained for about six years, he was asked to admit that he was associated with the Communist Party of Malaysia and to implicate Dr Mahathir Mohammad, the Prime Minister of Malaysia. The Home Minister[13] at that time was Tan Sri Ghazali Shafie.

‘They wanted me to use the communist bogey on Mahathir and Musa [the then Deputy Prime Minister] ... they told me that I would be released if I implicated Mahathir and Musa. They slapped me, denied me sleep, spat in my face, told lies about my wife and even placed a pistol in front of me. It was a terrible lie and being a Muslim, I would not be part of it’[14].

In a recent case, it was alleged that one former Youth leader of a political party was arrested and detained apparently to make him put in a letter of resignation from his post[15].

In some cases, it is to be wondered why persons are detained under DWT laws. Is it because there is insufficient evidence to prove that the person is guilty beyond reasonable doubt? Or is merely to protect others who might be in high positions of power, who are linked to some serious offences? No definite answers can be given, for we will never know for sure because there is no trial in open court. Former victims of the laws that allow for DWT often do not talk about what happened to them whilst in detention – and the main reason for this is the fear that they might be re-arrested and made guests in the detention centres under the same kind of laws.

Documentation of persons detained under the laws that allow for DWT is also scarce because for many there is no publicity in the media or otherwise. Frequently, families are ‘conned’ by the police into silence, by the empty promises of quick release if the family do not make an issue of the detentions. Lack of legal awareness and fear for their loved ones often would result not only in silence of the family, but even requests by these families to NGOs, human rights activist and/or politicians, not to raise the issue at all.

After the 60-day detention by the Police: Detention/Restriction Orders

After the 60-day detention by the police, the Minister usually issues a Detention Order or a Restriction Order.

Restriction Order

Besides the Detention Order, the Restriction Order is an alternative DWT order available to the Minister under the ISA, E(POPC)O and the DD(SPM)A. In my opinion, this is a more repressive order, because a breach of the conditions or restrictions makes a person liable to a criminal offence which on conviction is punishable with imprisonment up to two years. The RRA only allows for the imposition of a Restriction Order.

To appreciate the kind of restrictions and conditions that can be imposed on a person subjected to a Restriction Order, s 8(5) ISA is set out below:

‘If the Minister is satisfied that for any of the purposes mentioned in subsection (1) it is necessary that control and supervision should be exercised over any person or that restrictions and conditions should be imposed upon that person in respect of his activities, freedom of movement or places of residence or employment, but for that purpose it is unnecessary to detain him, he may make an order (hereinafter referred to as a restriction order) imposing upon that person all or any of the following restrictions and conditions:

a) for imposing upon that person such restrictions as may be specified in the order in respect of his activities and his places of his residence and employment;

b) for prohibiting him from being out of doors between such hours as may be specified in the order, except under the authority of a written permit granted by such authority or persons as may be so specified;

c) for requiring him to notify his movements in such manner at such times to such authority or persons as may be specified in the order;

d) for prohibiting him from addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to, any organisations or association, or from taking part in any political activities; and

e) for prohibiting him from travelling beyond the limits of Malaysia or any part thereof specified in the order except in accordance with permission given to him by such authority as may be specified in such order.’ (s 8(5) Internal Security Act 1960)

In the case of the E(POPC)O, the conditions and restrictions which cover similar areas, are elaborated even further and one significant addition is the inclusion of Police Supervision Orders[16].

‘If the Minister is satisfied that for any of the purposes mentioned in section 4(1) it is necessary that control or supervision should be exercised over any person or that restrictions or conditions should be imposed upon that person in respect of his activities, freedom of movement or places of residence and employment, but for those purposes it is unnecessary to detain that person, he may make an order (hereinafter referred to as a ‘restriction order’) imposing upon that person (hereinafter referred to as a ‘restricted person’) all or any of the following restrictions and conditions:

a) that he shall be subject to the supervision of the Police for any period not exceeding two years;

b) that he shall reside within the limits of any State, districts, mukim, town or village specified in the restriction order;

c) that he shall not transfer his residence to any other State, district, mukim, town or village, as the case may be, without the written authority of the Chief Police Officer of any State concerned;

d) that except so far as may be otherwise provided by the restriction order, he shall not leave the State, district, mukim, town or village within which he resides without the written authority of the Chief Police Officer of the State concerned;

e) that he shall at all times keep the Officer in Charge of the Police District in which he resides notified of the house or place in which he resides;

f) that he shall be liable, at such times or times as may be specified in the restriction order to present himself at the nearest police station;

g) that he shall remain within doors, or within such area as may be defined in the restriction order, between such hours as may be specified in the restriction order, unless he obtains special permission to the contrary from the Officer in Charge of the Police District;

h) that except in so far as may be otherwise provided by the restriction order, he shall not enter any State, district, mukim, town or village specified in the restriction order;

i) that he shall keep the peace and be of good behaviour;

j) that he shall enter into a bond, with or without sureties as the Minister may direct and in such amount as may be specified in the restriction order, for his due compliance with the restrictions and conditions imposed on him by the restriction order. (s 4A, Emergency (Public Order and Prevention of Crime) Ordinance[17]

The length of the Restriction Orders is not clear, but s 4A(2) of the E(POPC)O seems to imply that this period could be up to five years. But note that in the DWT laws, the Minister also has the power to renew the detention/restriction orders for periods of not more than two years at a time, for an indefinite period.

As was mentioned earlier, a contravention of a restriction or condition would result in a commission of an offence, and if this contravention is proved, the said person ‘shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years and not less than two years’[18] under the E(POPC)O. Under the DD(SPM)A, he can ‘be punished with imprisonment for a term not exceeding five years and not less than three years’[19].

Suspended Detention Orders

This third kind of Order is provided by s 4B E(POPC)O[20] and a reading of this section as set out below is sufficient to understand this kind of order.

‘The Minister may at any time direct that the operation of any detention order be suspended subject to all or any of the restrictions and conditions he is empowered to impose by a restriction order ...’ (s 4B Emergency (Public Order and Prevention of Crime) Ordinance).

Detention Orders

Detention Orders are provided for under the ISA, E(POPC)O and the DD(SPM)A and as mentioned above, all that is needed before a Detention Order is made is that the Minister must be satisfied of certain matters. The words used in describing these matters are so wide, that any mildly creative individual could ensure that satisfaction is achieved.

The Minister can order that a person be detained for any period not exceeding two years[21]. Detention Orders be extended for such further period, not exceeding two years at a time[22]. This can be done based on the same grounds and/or on different grounds. Some persons in our Malaysian history of DWT laws have been arrested and detained for periods even exceeding 10 years[23].

(i) Detention Centres

The detainee will be placed in Detention Centres and this detention will be governed by the Internal Security (Detained Persons) Rules 1960[24].

A perusal of these rules seem to imply that there are two kinds of detention camps, namely the ordinary detention camp and the special detention camp[25]. The rights and privileges of the detainee varies depending on the kind of camp that he is placed in.

In the case of the special detention camp, there are increasing rights as the length of the detention increases and the Superintendent (of the Detention camp) is satisfied that he has been of good behaviour, and if so satisfied the detainee will slowly move from the First Stage to the Third Stage. The added rights, for example is the right to send a letter; whereby a detainee in the first stage can only send and receive one letter from friends or relatives once in three weeks, whereas if he has been promoted to the Third Stage he has a right to send and/or receive one letter once every week. The privileges affected are, amongst others, the frequency of receipt of parcels, frequency of visits by relatives/friends, amount of time let out of the cell, the rate of pay, the quality of meals and the number of times the detainee is allowed to visit the canteen for the purpose of purchasing articles sold there.

A detainee in a detention camp[26] shall be entitled to visits[27] from his relatives and his legal advisers. For visits from friends, special permission of the Camp Superintendent is required. A detainee is entitled to one visit a week, and not more than two persons shall be admitted to visit a detained person at anyone time. These visits shall not last for more than 30 minutes. How can the detainee even brief his legal counsel in 30 minutes?

Judicial Review or Judicial Intervention

Since the coming into force of the amendments[28] to the laws allowing for DWT, judicial review has been limited to questions of compliance with any procedural requirement in this Act.

The Prime Minister when tabling the Internal Security (Amendment Act) said as follows:

‘The interventionist role of judicial decisions and the trends of foreign courts should not be copied because such actions was against the concept of separation of powers between the executive and the judiciary which was upheld in Malaysia. If the courts can reverse executive’s decision, it would make it impossible for the executive to make any decision for fear that the courts would intervene. The ruling party would then be waiting for the decisions of the courts and the results of appeal to higher courts’[29].

The meaning of judicial review was defined by s 8C Internal Security Act[30] to ‘include proceedings instituted by way of (a) an application for any prerogative orders of mandamus, prohibition and certiorari; (b) an application for a declaration or an injunction; (c) a writ of habeas corpus; and (d) any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Yang di-Pertuan Agung or the Minister in accordance with this Act’.

By virtue of s 8B Internal Security Act[31], judicial review was ‘limited to any question on compliance with any procedural requirement in this act governing such act or decision.

Section 8A further limits this, and the said section is laid out as follows:

‘No detention order shall be invalid or inoperative by reason –

(a) that the person to whom it relates –

(i) was immediately after the making of the detention order detained in any place other than a place of detention referred to in section 8(3);

(ii) continued to be detained immediately after the making of the detention order in the place in which he was detained under section 73 before his removal to a place of detention referred to in section 8(3), notwithstanding that the maximum period of such detention under section 73(3) had expired; or

(iii) was during the duration of the detention order on journey in police custody to a place of detention referred to in section 8(3); or

(b) that the detention order was served on him at any place other than the place of detention referred to in section 8(3),

or that there was any defect relating to its service upon him.’

By virtue of s 8D[32], ss 8B and 8C were made applicable to any proceedings instituted by way of judicial review whether such proceedings were instituted before or after the coming into force of the amending Act. Only proceedings in respect of which a final decision of the court had been given and/or to any appeal or application to appeal against such final decision survived.

An analysis of the applications of judicial review reveals that the mode used has generally been by way of a writ of habeas corpus.

Even before the coming into force this new amendment, the courts were reluctant to go into the question of whether there existed any reasonable cause for a person to be detained under the laws allowing for DWT, on the grounds that it was a matter of opinion and policy, and a decision that only the executive could make. The court also did not want to evaluate the facts/evidence, if any, that led to this executive ‘satisfaction’ and ultimate decision. The court was also of the opinion that the executive has no obligation to even disclose facts that led to believe that detention was needed. To get a brief picture of the judicial pronouncements, extract of judgments of some of the pre-amendment cases are set out below.

Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia (Federal Court, 25 April 1969) (1969) 2 MLJ 129: ‘whether there was reasonable cause to detain a person under Section 8(1) of the Internal Security Act 1960 [ISA] was a matter of opinion and policy, a decision on which could only be taken by the executive, and which therefore the courts could not go into ...’

Re Tan Sri Raja Khalid bin Raja Raja Harun; Inspector-General of Police v Tan Sri Raja Khalid bin Raja Harun (Supreme Court) (1988) 1 MLJ 182): ‘the detaining authorities are not obliged to disclose the facts which led them to so believe nor are they required to prove in court the sufficiency or adequacy of the reasons for such belief in any proceedings for habeas corpus instituted by the detainee. It is sufficient if the detaining authorities show that the person has been detained in exercise of a valid legal power. The onus is then on the detainee to show that the power has been exercised mala fide or improperly or for a collateral or ulterior purpose ...’. It was also held that ‘where the detaining authorities invoke national security as the grounds for non-disclosure of facts leading to the making of an order of detention, the test to be applied by the court in any proceedings for habeas corpus would be a subjective test. The court cannot in those circumstances compel the disclosure of such facts.’

Minister for Home Affairs, Malaysia & Anor v Karpal Singh (Supreme Court) (1988) 3 MLJ 29: ‘... while the grounds of detention stated in the order of detention were open to judicial review, the allegations of fact upon which the subjective satisfaction of detaining authority was based were immune from judicial scrutiny ...’.

Theresa Lim Chin Chin & Ors v Inspector General of Police (Supreme Court) (1988) 1 MLJ 293: ‘police power of arrest and detention under Section 73 of the ISA could not be separated from the ministerial power to issue an order of detention under Section 8 thereof ...’. It was also held that ‘in the matter of preventive detention the executive alone is the best judge and that the court will not be in a position to review the fairness of the executive’s decision-making process having regard to the Constitutional bar on disclosure of the relevant information by the executive’. This case also held that ‘the ISA was a valid piece of legislation and that there was nothing in the wording of the Act to show that its operation was restricted to persons suspected of communist activities’.

Although judicial review has been restricted to the question of compliance with any procedural requirement, writs of habeas corpus continue to be filed and some of them have been successful. An example of the issues raised in these applications is in the case of Haji Omar Din bin Mawaidin v Minister for Home Affairs, Malaysia & Anor (1990) 3 MLJ 435 (High Court) where the issue was whether the Minister can revoke a restriction order and substitute it for a detention order without first complying with the requirements of the Act.

However in the case of Karpal Singh, he was successful in his application for a writ of habeas corpus, and was released by the court only to be subsequently re-arrested again under the ISA. This indicates that a successful judicial review may not be sufficient, as these laws that allow for DWT can be used again to arrest and detain again.

Recently, in the Federal Court case of Mohamad Ezam Mohd Noor –v- Ketua Polis Negara & Other Appeals (2002) 4 CLJ 309, the court looking at the period of administrative detention by the police, being the period prior to the issuance of the Detention Orders by the Minister, held that “the court is entitled to review the sufficiency and the reasonableness of the respondent’s [i.e. the Police] reasons for believing that there were grounds to justify the appellants’ detention under s.8 ISA and that the appellant had acted or was about or likely to act in a manner prejudicial to the security of the nation. The court said that the objective test, and not the subjective test, applies and what this means is that the court would now look and see whether a reasonable police officer would in that particular situation have arrested and detained the said detainee. In this case, interestingly, the court did not consider just the facts that existed prior to the arrest, but also went on to considered what happened after the arrest during the period of detention, to determine the real reasons for the arrest and detention. This case was concerning the ISA, but logically it should also apply to other detention without trial laws.

Review by the Advisory Board

According to the DWT, there are provisions for the setting up of an Advisory Board whose function is to review every order or direction made or given by the Minister not less than once every six months but sad to say that all that they are empowered to do after that is to ‘submit to the Minister a written report ..., and may make therein such recommendations as it shall think fit’[33].

In the case of DD(SPM)A[34], the detainee has more explicit rights[35], like the right to be informed of his right to make representations, and if he chooses to do so, the Advisory Board shall sit within three months[36] from the date of receipt of the said representations. There is also similar provision where every order and/or direction be reviewed not earlier than 12 months from the date of such order/direction[37]. Here, the opinion of the Advisory Board carries more ‘weight as seen in s 11(3)[38] which is set out below:

‘When the Advisory Board has reported that in its opinion the detention or restriction should cease, the Minister shall revoke the detention or restriction order.’ (s 11(3) Dangerous Drugs (Special Preventive Measures) Act)

Concluding Remarks

For a long time too much attention has been focused on the ‘injustice’ of the ISA, but today more attention is being placed on all laws that allow for DWT. Previously, attention was only given to the detention of persons in detention camps but today there is also an increasing awareness about the other orders available to the Minister under these DWT laws, like the Restriction Orders - which is really more unjust.

On 6 December 1997, participants of the Bar Council Human Rights Seminar on ‘Detention Without Trial: Has the time for Abolition Come?’ adopted the position that all laws providing for arrest and detention without trial, and for restriction of residence and movement of persons are contrary to the rule of law, international human rights standards and established religious values and norms, and called for the repeal of all laws that allow for DWT.

Only at the Extraordinary General Meeting in 1998 did the Malaysian Bar adopt a similar position. The Malaysian Bar has now in July 2002 set up a Special Task Force to campaign for the repeal of all preventive detention laws. And finally in end 2003, the Bar Council launched the Abolish Detention Without Trial Campaign.

The campaign against preventive detention or DWT laws in Malaysia has made slow progress and this is primarily due to the lack of awareness or conscientisation. There is firstly a need for an understanding of the different aspects of DWT laws, and the reasons why we must all support this on-going call for the repeal and abolishment of all laws that allow detention without trial, not merely the more popular ISA. This article hopes to merely give a broad overview about DWT laws, and as such I have stayed away from dealing with developments in specific aspects of DWT laws.

The ISA which was originally enacted against persons suspected of communist activities[39] has been used increasingly against political and/or personal opponents by those in power.

Similarly, the E(POPC)O was supposed to be used to suppress gang-related crimes and crimes of violence, but past experience has shown that it has been used against workers’ leaders as well.

The DD(SPM)A is supposed to be used as a weapon to combat the offence of drug trafficking but alas, there is always the room for abuse, for after all a person arrested, detained or restricted under any of these DWT laws do not have the just access to a fair and open trial.

But irrespective of its stated purposes, all these laws that allow for DWT, can be abused. These laws, which goes against principles of natural justice and human rights must be repealed. Judicial review should be revived for these laws, giving effect to the doctrine of separation of powers, so that at least the judiciary will be able to check any mis-use of these laws, at least until it is abolished in toto. All actions of the executive, be it the police and/or the Minister, should be subject to judicial review and it is most important that there be no exceptions.

Charles Hector

* this article is adapted and updated from a treatise on Administrative Detention in Malaysia written in 1996. The effect of the Federal Court case of Mohamad Ezam in 2002 is included.

[1] Art 5(2) Federal Constitution allows the police to arrest and detain a person (a citizen) for a period of less than 24 hours.

[2] Extracted from a paper by Karpal Singh entitled ‘Administrative Detention in Malaysia’.

[3] Referring to the Restricted Residence Act 1933 which gives very broad powers to the Minister to restrict residence and/or inhibit movement if ‘… there are reasonable grounds for believing that any person should be required to ...’ (see s 2(i) of the Act). This Act unlike the other laws that allow preventive detentions does not specify any grounds or reasons why a person should be so restricted and/or inhibited. The Internal Security Act 1960 for example, allows for preventive detentions if, and only if, the Minister is satisfied that it is ‘... necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof ...’.

In the case of Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, the appellant had been arrested under a warrant issued under the provisions of the Restricted Residence Act 1933, and thereafter he was not produced before the Magistrate within 24 hours as required by Article 5(4) of the Federal Constitution. Before the appeal was heard by the Federal Court, the Federal Constitution was amended whereby Article 5(4) was amended by the Constitution (Amendment) Act 1976, and declared not to ‘apply to the arrest and detention of any person under the existing law relating to restricted residence’. This amendment was backdated to 31 August 1957, the Independence Day of Malaysia (Dato’ Dr Rais Yatim, Detention Without Trial: Has The Time For Abolition Come?).

[4] In this case, the proviso itself clearly states that the words ‘within twenty four hours’is replaced with the words ‘within fourteen days’. The application of this can be seen in the Immigration Act 1959/63 (see s 51(5)(b)).

* Section 7C, Emergency (Public Order & Prevention of Crime) Ordinance 1969 (inserted by the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1989 (Act A740) which came into effect on 24 August 1989).

* Section 11C, Dangerous Drugs (Special Preventive Measures) Act 1985 (s 11C, amongst others, was inserted by Act A738 around the same time as the two above).

[8] The provisions for the 60-day detention period is similar in all the laws that provide for DWT.

[9] With regard to the Dangerous Drugs (SPM)A, the word ‘thirty days’ is replaced by the words ‘fourteen days’.

[10] The case of Anwar Ibrahim, the former Deputy Prime Minister of Malaysia should also be considered.

[11] Malaysia: ‘Operation Lallang’: Detention Without Trial Under the Internal Security Act – Amnesty International (December 1988), Preventive Detention (Restrictions) Laws In Malaysia – an article that was published in ALIRAN on or about December 1994.

[12] Mentioned by Dr Syed Husin in many of his discussions. He has documented his experiences in detention under the ISA in a recently published book entitled Two Faces.

[13] Thereafter, I believe that the position of the Home Minister has been held by the Prime Minister, until this year Abdullah Ahmad Badawi, the new Deputy Prime Minister has taken over this portfolio.

[14] Jocelin Tan, ‘An Old Warrior’, Malaysian Business, 1 June 1994, p 34. Dr Syed Husin Ali, now the President of Parti Rakyat Malaysia (PRM) was an ISA detainee for six years (1974-1980). After the 60-day detention period, he was also subject to re-interrogation after being sent to the Kamunting Detention Camp. Usually, after the first 60-days, detainees are no more subjected to interrogations by the police. (Also see Dato’ Dr Rais Yatim, Detention Without Trial: The Malaysian Experience).

[15] This information and the condition of many others who have been detained under the ISA can easily be obtained on the Internet.

[16] Sentence of Police Supervision and the obligations of persons subject to supervision are probably the same as those provided in s 295 and s 296 of the Criminal Procedure Code.

[23] R Gunaratnam, a Party Rakyat Malaya member, was detained for 11 years 8 months beginning from 14 November 1970 until 1982. S N Rajah, the executive secretary to United Malayan Estate Workers (UMEW) was detained for 11 years 2 months, beginning on 16 November 1970 until 18 January 1981.

[25] Rule 86 Internal Security (Detained Persons) Rules 1960, also see Rule 2 which gives the definition of ‘special detention camp’ as meaning a place declared to be a special detention camp under Rule 86.

[26] Would also be similar for detainees kept in special detention camps who have been promoted to the Third Stage.

[28] Section 8B Internal Security Act 1960 (s 8B, amongst others, was inserted by the Internal Security (Amendment) Act 1989 (Act A739) which came into effect on 24 August 1989). Section 7C Emergency (Public Order & Prevention of Crime) Ordinance 1969 (inserted by the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1989 (Act A740) which came into effect on 24 August 1989). Section 11C Dangerous Drugs (Special Preventive Measures) Act 1985, (s 11C, amongst others, was inserted by Act A738 around the same time as the two above).

[29] Extracted from a paper by Karpal Singh entitled ‘Administrative Detention in Malaysia’.

[34] Similar provisions found in the E(POPC)O but the powers of the Board recommendations seems to be less or more like the ISA. The frequency of a review/order is also not stated and is left to the discretion of the Chairman of the Advisory Board (s 7(1) E(POPC)O).

[39]Theresa Lim Chin Chin & Ors v Inspector General of Police (Supreme Court) (1988) 1 MLJ 293. This case also held that ‘the ISA was a valid piece of legislation and that there was nothing in the wording of the Act to show that its operation was restricted to persons suspected of communist activities’.

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